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Gregg v. Georgia
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Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), reaffirmed the Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. In its 1972 decision in Furman v. Georgia , the Supreme Court had imposed a de facto moratorium on the death penalty.
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Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), reaffirmed the Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. In its 1972 decision in Furman v. Georgia , the Supreme Court had imposed a de facto moratorium on the death penalty. In response legislatures in many states retooled the procedures used to impose the death penalty to conform to the Furman decision. These July 2 Cases, as a leading scholar refers to them, set forth the two main features these capital sentencing procedures must employ in order to comport with the Eighth Amendment.
The primary defect in American capital sentencing procedures that Furman had identified was the arbitrary and capricious nature of the entire system. Justice Potter Stewart had remarked that the death penalty was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." In the July 2 Cases, the Court set out two broad guidelines that legislatures must follow in order to craft a constitutional capital sentencing scheme. First, the scheme must provide objective criteria to direct and limit the sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences. Second, the scheme must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant. In Gregg, Proffitt, and Jurek, the Court found that the capital sentencing schemes of Georgia, Florida, and Texas, respectively, met these criteria. In Woodson and Roberts, the Court found that the sentencing schemes of North Carolina and Louisiana did not.
The July 2 Cases mark the beginning of the United States's modern legal conversation about the death penalty. Major subsequent developments include forbidding the death penalty for rape (Coker v. Georgia), restricting the death penalty in cases of felony murder (Enmund v. Florida), exempting the mentally handicapped (Atkins v. Virginia) and juvenile murderers (Roper v. Simmons) from the death penalty, removing virtually all limitations on the presentation of mitigating evidence (Lockett v. Ohio, Holmes v. South Carolina), requiring precision in the definition of aggravating factors (Godfrey v. Georgia, Walton v. Arizona), and requiring the jury to decide whether aggravating factors have been proved beyond a reasonable doubt (Ring v. Arizona).
In the July 2 Cases, the Court's goal was to provide guidance to states in the wake of Furman. In Furman only one basic idea could command a majority vote of the Justices: capital punishment, as then practiced in the United States, was cruel and unusual punishment because there were no rational standards that determined when it was imposed and when it was not. The question the Court resolved in these cases was not whether the death sentence imposed on each of the individual defendants was cruel, but rather whether the process by which those sentences were imposed was rational and objectively reviewable.
By way of background, all five cases share the same basic procedural history. The named defendant had been convicted of murder and sentenced to death. The respective state supreme court had upheld the death sentence. The defendants then asked the U.S. Supreme Court to review their death sentence, and it agreed to do so.
Capital punishment is not cruel and unusual punishment
The defendants in each of the five cases urged the Court to go farther than it had in Furman by holding once and for all that capital punishment was cruel and unusual punishment that violated the Eighth Amendment. However the Court responded "The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman." Both Congress and 35 states had attempted to comply with the Court's dictates in Furman by either specifying factors to be weighed and procedures to be followed when imposing a death sentence or dictating that the death penalty would be mandatory for specific crimes. Furthermore, a referendum in California had overturned the California Supreme Court's earlier decision holding that the death penalty violates the California constitution. The fact that juries remained willing to impose the death penalty also contributed to the Court's conclusion that American society did not believe in 1976 that the death penalty was in all circumstances cruel and unusual punishment.
The Court also found that the death penalty "comports with the basic concept of human dignity at the core of the [Eighth] Amendment." The death penalty serves two principal social purposes—retribution and deterrence. "In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct." But this outrage must be expressed in an ordered fashion, for America is a society of laws. Retribution is consistent with human dignity, because society believes that "certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." And although it is difficult to determine statistically how much crime the death penalty actually deters, the Court found that in 1976 there was "no convincing empirical evidence" supporting either the view that the death penalty is an effective deterrent to crime or the opposite view. Still, the Court could not completely discount the possibility that for certain "carefully contemplated murderers," "the possible penalty of death may well enter into the cold calculus that precedes the decision to act."
Finally, the Court considered whether the death penalty is "disproportionate in relation to the crime for which it is imposed." Although death is severe and irrevocable, the Court could not say that death was always disproportionate to the crime of deliberately taking human life. "It is an extreme sanction, suitable to the most extreme of crimes
Toward constitutional capital sentencing procedures
The proposition that the death penalty was not always cruel and unusual punishment was just the beginning of the discussion. Furman had held that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly aribtrary and capricious action." The question the Court confronted in these five cases was whether the procedures crafted by Georgia, Florida, Texas, North Carolina, and Louisiana adequately minimized that risk. In all five cases, the Court's primary focus was on the jury.
Although in most criminal cases the judge decides and imposes the sentence, "[j]ury sentencing has been considered desirable in capital cases in order to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect the evolving standards of decency that mark the progress of a maturing society." The drafters of the Model Penal Code concluded that the now-familiar bifurcated procedure, in which the jury first considers the question of guilt without regard to punishment, and then determines whether the punishment should be death or life imprisonment, is the preferable model. This was the model that the Court approved in these cases—although it tacitly approved a model without any jury involvement in the sentencing process, an approval that persisted until 2002's Ring v. Arizona.
The drawback of having juries rather than judges fix the penalty in capital cases is the risk that they will have no frame of reference for imposing the death penalty in a rational manner. Although this problem may not be totally correctible, the Court trusted that the guidance given the jury by the aggravating factors or other special-verdict questions would assist it in deciding on a sentence. The drafters of the Model Penal Code "concluded that it is within the realm of possibility to point to the main circumstances of aggravation and mitigation that should be weighed and weighed against each other when they are presented in a concrete case." For the Court, these factors adequately guarded against the risk of arbitrary imposition of the death sentence.
Every death sentence involves first an eligibility determination and then a selection of an eligible defendant for the death penalty. A defendant is eligible for the death penalty once the jury has concluded that he is a member of that narrow class of criminal defendants who have committed the most morally outrageous of crimes. An eligible defendant is then selected for the death penalty after the sentencer takes into account mitigating evidence about the character and record of the defendant in order to decide whether that individual is worthy of a death sentence. With Gregg and the companion cases, the Court approved three different schemes that had sufficiently narrow eligibility criteria and at the same time sufficiently broad discretion in selection. By contrast, the two schemes the Court disapproved had overly broad eligibility criteria and then no discretion in sentencing.
Georgia
After the defendant is convicted of, or pleads guilty to, a capital crime, the court conducts an additional hearing at which the jury receives additional evidence in aggravation and mitigation. In order for the defendant to be eligible for the death penalty, the jury must find the existence of one of ten aggravating factors:
- The defendant has previously been convicted of a capital felony or has a history of committing serious felonies.
- The capital felony was committed while the defendant was committing another capital felony.
- The defendant created a grave risk of death to others.
- The defendant committed the crime for the purpose of receiving money or anything else of value.
- The defendant killed a judge or prosecutor exercising his official duties.
- The defendant hired a killer.
- The crime was "outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."
- The defendant killed a police officer, prison guard, or fireman in the line of duty.
- The offense was committed by someone who had escaped from prison.
- The offense was committed for the purpose of avoiding arrest.
Once the jury has found that one or more of these aggravating factors exists beyond a reasonable doubt, then the defendant is eligible for the death penalty. The jury may then evaluate all the evidence it has heard—including mitigating evidence and other aggravating evidence not supporting one of the ten factors beyond a reasonable doubt—and decide whether the defendant should live or die.
Because of the jury's finding at least one aggravating factor is a prerequisite for imposing the death penalty, the Court found that Georgia's system adequately narrowed the class of defendants eligible for the death penalty. There is admittedly some discretion, but that discretion is channeled in an objective way, as Furman requires. This system is called a non-weighing system because the sentencer is not required to weigh the statutory aggravating factors against mitigating evidence before imposing a death sentence.
Florida
Florida's scheme differs from Georgia's in two respects. First, at the sentencing hearing, the jury determines whether one or more aggravating factors exist, drawing on a list very similar to Georgia's. Then the jury is specifically asked to weigh the mitigating evidence presented against the statutory aggravating factors that have been proved. This scheme is called a weighing scheme.
Second, the jury's role is only advisory; the judge may disregard the jury's sentencing recommendation, but he must explain his reasoning if he does. Under Florida law, if the jury recommended life but the judge imposed a death sentence, "the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." The trial judge must independently reweigh the aggravating factors against the mitigating factors.
These differences did not trouble the Court, and it likewise concluded that the sentencer's discretion was limited in an objective fashion and directed in a reviewable manner. Furthermore, Florida's scheme comes closest to the Model Penal Code's recommendation of an ideal sentencing scheme because it requires that aggravating circumstances be weighed against mitigating circumstances.
Texas
The Texas capital sentencing scheme performs the narrowing function required by Furman differently than that suggested by the Model Penal Code and followed in large part by Georgia and Florida. Rather than using aggravating factors to accomplish the narrowing, Texas law defines capital murder, as distinct from first-degree murder, in a very narrow way. As Texas law defined it in 1976, capital murder is an intentional killing done with malice aforethought where:
- the defendant knew the victim was a peace officer or fireman acting in the line of duty;
- the defendant intentionally committed the murder in the course of committing rape, kidnapping, arson, burglary, or robbery; or
- the defendant hired someone to commit, or was hired to commit, the murder.
If the defendant is convicted of capital murder, a separate hearing is held at which the jury considers two, or sometimes three, special issues:
- Did the evidence establish beyond a reasonable doubt that the killing was deliberate?
- Did the evidence establish beyond a reasonable doubt that the defendant would be a continuing threat to society?
- If the evidence warrants it, did the evidence suggest that the defendant's reaction to the victim's provocation was unreasonable?
If the jury answers each question in the affirmative, then a death sentence is imposed. Otherwise, a life sentence is imposed.
The Court observed that the very narrow definition of capital murder serves the same purpose as the aggravating factors in the Georgia and Florida schemes; indeed, the two schemes carved out overlapping categories of death-eligible defendants. The scheme still "requires the sentencing authority to focus on the particularized nature of the crime." The Court even observed that the Texas definition might yield a smaller class of death-eligible defendants than either the Georgia or Florida scheme.
However, a capital sentencing scheme is not constitutional unless it both narrows the class of eligible defendants and provides for individualized sentencing. It was clear that the Georgia and Florida schemes did that; the question was whether the Texas scheme did so as well. The special issues, unlike the aggravating/mitigating scheme suggested by the Model Penal Code, did not expressly use the word "mitigate." In fact, the special issues only explicitly asked the jury to consider one aspect of the defendant's character—whether he would continue to pose a risk to the community.
The Court nevertheless believed that the Texas scheme allowed for the full consideration of mitigating evidence to the same extent as the other schemes it approved. The Texas Court of Criminal Appeals had indicated that the second special issue—whether the defendant would be a continuing threat to society—would allow the defendant to present mitigating evidence to the jury. In light of the Texas court's assurance that the second special issue would allow for the same extensive consideration of mitigating evidence as the Georgia and Florida schemes, the Court upheld the Texas scheme as consistent with Furman.
Appellate review
In addition to jury sentencing through the guidance of aggravating factors, a constitutional capital sentencing scheme must provide for appellate review of the death sentence, typically by the state's supreme court. This review must not be a rubber stamp; there must be evidence in the state's decisional law that the court takes seriously its responsibility to ensure that the sentence imposed was not arbitrary.
Historical disapproval of mandatory death sentences
The Court approved the capital sentencing procedures created by Georgia, Florida, and Texas in the wake of Furman because each of them shared two important features. First, they created a discrete and narrow category of offenders who were eligible for the death penalty. Second, they gave the sentencer objective factors to apply when exercising discretion in capital sentencing.
North Carolina and Louisiana responded to Furman in a markedly different way. Rather than taking up the Model Penal Code's suggestion, or defining capital murder in a very narrow way, they simply made the death penalty the only punishment available for first-degree murder. Although Louisiana defined that crime more narrowly than North Carolina did, both definitions suffered from the same two flaws. First, their eligibility criteria were too broad because all those convicted of first-degree murder were automatically eligible for the death penalty. Second, they eliminated any discretion in capital sentencing, thus severing the link between the sentiment of the community and the penal system, an important reason for maintaining the death penalty in the United States.
The Court was determined to simultaneously save capital punishment in the United States and impose some reasoned basis for carrying it out. That reasoning flows from the Eighth Amendment's cruel and unusual punishment clause. Although capital punishment is not per se cruel and unusual, it must still be carried out in a manner consistent with the evolving standards of decency that mark the progress of a maturing society. In the Court's view, the country's history with capital punishment suggests that those evolving standards of decency could not tolerate a return to the mandatory death penalty for murder that had prevailed in medieval England.
In medieval England, the penalty for a vast number of serious crimes, including murder, was death. This rule traveled with the colonists to America, and was the law in all states at the time the Eighth Amendment was adopted in 1791. By then, however, a problem with the common-law mandatory death penalty had crept into the legal system. If the jury has only two options—convicting a defendant of murder, where the penalty is death, or acquitting the defendant outright—it has no vehicle to express the sentiment that the defendant should be punished somehow, but not executed. Faced with this dilemma, some juries would acquit the defendant in order to spare his life. Of course, this meant that an obviously guilty person would go free.
To mitigate the harshness of the common-law rule, Pennsylvania divided murder into "degrees" in 1794. First-degree murder, a capital crime, was limited to all "willful, deliberate, and premeditated" murders. All other murder was second-degree murder, and not a capital crime. This development eased the tension created by the common-law mandatory death penalty, but some juries still refused to convict defendants who were clearly guilty of first-degree murder because that crime carried a mandatory death penalty.
Recognizing that juries in capital cases found discretion in sentencing desirable, Tennessee, Alabama, and Louisiana afforded their juries this discretion in the 1840s. Finally, the jury could respond to mitigating factors about the crime or the criminal and withhold the death penalty even for convicted first-degree murderers. This development spread, and by 1900 23 states and the federal government had discretionary sentencing in capital cases. Fourteen more states followed in the first two decades of the 20th century, and by 1963 all death-penalty jurisdictions employed discretionary sentencing. In particular, North Carolina enacted a discretionary sentencing law in 1949.
Mandatory death penalties contradict Furman
In light of the historical rejection of the mandatory death penalty in the United States, the Court ruled that for North Carolina and Louisiana to revert to mandatory death penalties for first-degree murder violated the Eighth Amendment as interpreted in Furman. This was so even though Louisiana had defined first-degree murder somewhat more narrowly than North Carolina had, although not as narrowly as Texas's crime of capital murder.
North Carolina
In North Carolina, after Furman, the state supreme court had ruled that its capital sentencing scheme could survive if the legislature removed the discretionary sentencing provision. In 1974, then, the North Carolina General Assembly defined first-degree murder as
- murder perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary, or other felony.
North Carolina had also enacted a mandatory death penalty for first-degree rape, but the Court later ruled in Coker v. Georgia that rape is not a capital crime, at least where the victim is not killed.
Louisiana
In 1973, the Louisiana legislature redefined first-degree murder to eliminate the long-standing discretion afforded the jury to impose or withhold the death penalty. At the same time, it defined first-degree murder as the killing of a human being in one of five circumstances:
- when the offender has a specific intent to kill and is engaged in the perpetration of aggravated kidnapping, aggravated rape, or armed robbery;
- when the offender has a specific intent to kill a fireman or peace officer engaged in the performance of his duties;
- when the offender has a specific intent to kill and has previously been convicted of an unrelated murder or is serving a life sentence;
- when the offender has a specific intent to kill or inflict great bodily harm on more than one person; and
- when the offender has a specific intent to kill and has been offered or has received anything of value for committing the murder
Also, unlike North Carolina, Louisiana law required the jury in all first-degree murder cases to be instructed on second-degree murder and manslaughter. Although Louisiana had created a class of death-eligible crimes somewhat narrower than North Carolina had, it still had a mandatory death penalty for a significant range of crimes.
The Court condemned these mandatory death penalty schemes as an attempt to "paper[] over the problem of unguided and unchecked jury discretion" identified in Furman. Knowing that the death penalty is mandatory for first-degree murder, the jury will inevitably find a way to spare the defendant that fate if it feels the defendant does not deserve it. A mandatory death penalty does not "fulfill Furmans basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death." Indeed, Louisiana's system of automatically instructing the jury with lesser crimes "plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate."
Other views expressed in these cases
Justices Brennan and Marshall expressed their views, which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty.
Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.
White also disagreed that the Constitution required a separate penalty hearing before imposing the death penalty. "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death." He also saw no difference between Louisiana's definition of first-degree murder and Texas's definition of capital murder.
Justice Rehnquist would have upheld North Carolina's and Louisiana's mandatory death penalties. He disputed the historical evidence adduced in support of the claim that American juries dislike mandatory death penalties. He also felt that the Court's decisions had an analytical flaw. The Court had struck down the mandatory death penalty because it took away discretion from the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death penalty for no reason at all. Thus, Georgia's scheme did not alleviate the concerns articulated in Furman about the arbitrariness of the death penalty any more than North Carolina's ignored them. He also disputed whether the appellate review of death sentences inherent in the systems the Court had approved could truly ensure that each death sentence satisfied those concerns. He finally took issue with the idea that the fact that "death is different" requires any extra safeguards in the sentencing process.
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